Opinion Contributor

FISA court secrecy must end

In 33 years, the FISA court has rejected just 11 of 34,000 requests, the author writes. | AP Photo

By SEN. RICHARD BLUMENTHAL | 7/14/13 11:15 PM EDT

On any given day in Washington, 11 judges — all designated by Chief Justice John Roberts, without congressional advice or consent — convene to hear surveillance applications from the United States government. Behind closed doors and without checks or scrutiny, they balance the threats of espionage and terrorism with Fourth Amendment protections from unreasonable searches and seizures. But the odds are stacked strongly in favor of the federal government. Last year alone, the Foreign Intelligence Surveillance Court, known as the FISA court, heard nearly 1,800 such applications from the U.S. government; not a single request was denied. In its entire 33-year history, the FISA court has rejected just 11 of 34,000 requests.

Until recently, few Americans had heard of the FISA court. Yet this federal body, created by the Foreign Intelligence Surveillance Act of 1978 and expanded under the PATRIOT Act, wields tremendous power. FISA requires the government to obtain a judicial warrant prior to commencing particular kinds of intelligence operations within the United States, and the FISA court is empowered to provide these warrants. FISA court judges decide whether the government can tap phone calls, access business records and sweep up a wide array of data that can be used to map the contours of our daily lives. After the court rules, its findings are almost never made public. Americans whose privacy may be compromised by FISA court rulings cannot read those rulings, much less contest or appeal them.

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Created in the wake of Watergate-era revelations about executive-branch spying on domestic dissidents, the FISA court today operates in the shadows without public oversight. Members of most federal courts are selected by the president and confirmed by the Senate with public hearings and an extended opportunity for the public to comment. Members of the FISA court are selected by the chief justice alone, and the American people rarely learn their names or anything about their judicial philosophies until a scandal thrusts them into the public eye.

This secretive process has given us a FISA court in which, at the very least, the appearance of effective, nonpolitical justice is gone, as 10 of 11 members were nominated by Republican presidents, and the executive branch almost never loses.

The FISA court reviews domestic surveillance requests through a secretive process that denies the public an opportunity to influence or even understand opinions with immense implications for our privacy. In the domestic criminal context, the contours of Fourth Amendment limitations have been developed through a process in which advocates, officials and the public have a chance to identify flaws in the government’s reasoning. While domestic criminal warrants are issued after proceedings in which only the government is able to make its case, the legal principles governing the decision to issue these warrants come from judicial decisions regarding their admissibility — decisions issued after public proceedings where both sides have a chance to be heard. By contrast, in the FISA court context, drastic expansions in government surveillance can occur without any party other than the government having an opportunity to know, much less to weigh in.

This has to stop. I am already working on legislation to reform the FISA court so it can perform effectively its crucial function as a check on the executive branch, while still allowing light to shine upon its proceedings. My proposal, which I plan to introduce this month, will bring transparency to the process for selecting FISA court judges and ensure a broader diversity of views on the bench. It also will ensure that FISA court rulings are the product of a process in which both sides have the opportunity to be heard, a process designed to keep the government honest and allow for balanced consideration of difficult issues. This process will include a special advocate with the power and responsibility to ensure that privacy rights are considered in FISA court opinions, and an opportunity for civil society organizations to weigh in before the court issues a ruling that substantially alters the balance between liberty and security in federal policy.

The FISA court serves a critical purpose in our national security apparatus, ensuring timely consideration of surveillance requests when seconds matter most. But the court in its current form — unaccountable, secretive, one-sided — is broken. It not only lacks any genuine transparency and accountability, but it also deprives the entire system of trust and credibility in the eyes of the American people. The FISA court is exactly the type of secret tribunal that fanned the flames of revolution we celebrate each July 4. It’s time to change that.